White House Admits That It Still Supports Parts Of SOPA: Wants To Make Streaming A Felony

from the because-of-course dept

Last week, we wrote that Senator (and still for the next few weeks, Majority Leader) Harry Reid was looking for ways to push for a piece of SOPA, making streaming a felony, into law. The story we’d heard from multiple sources was that he was looking to attach it to the USA Freedom Act. His office came out and denied that claim vehemently. Still, multiple sources insisted not only that it was true, but that Reid was still looking for other vehicles to push that through. And… just days later, the White House responded to some (somewhat pointless) White House “We The People” petitions by… announcing that it, too, wanted to turn unauthorized streaming into a felony. This was in response to two separate petitions, Stop SOPA 2013 and Stop SOPA 2014. Neither petition made much sense, as SOPA has been long dead since early 2012. There was never any specific bill in either 2013 or 2014. And yet, Alex Niejelow, the chief of staff to the IP Czar (a position that is in limbo, as the new czar has been nominated, but not yet approved), used those petitions as an opportunity to reiterate that the White House, like Reid, supports making unauthorized streaming a felony.

Niejelow carefully tries to frame the plan as not going after individuals for uploading videos, but the language choices are deliberate here:

To be clear: We are not advocating for, and do not support, Congress enacting criminal sanctions against people who upload their own, non-commercial performances of other artists’ works on Tumblr, against the content creators making your favorite mashup on YouTube, or against the users of these services — like many of you who signed this petition — who watch and listen to this digital content.

Rather, we think the law should deter the large-scale willful reproduction, distribution, and streaming of illegal, infringing content for profit. We think it is important to combat this type of activity because of the negative impact it has in diminishing the drive and economic incentive to produce the great movies, sporting events, and music that we love and that account for millions of American jobs and billions of dollars contributed to our economy annually.

Almost everything in those two paragraphs is misleading — sometimes extremely so. As Harvard law professor Jonathan Zittrain helpfully explained back in 2011, the move to make unauthorized streaming a felony, changed the law in subtle, but dangerous ways. It’s true, of course, that merely uploading a file would not be considered an offense under that part of the law (it may violate other aspects of the law), but it could still be problematic. Here was Zittrain’s discussion, specifically in response to the question of whether or not Justin Bieber could have gotten in trouble for uploading videos of himself covering songs:

No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file — so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed — indeed, intending that as the only reason for the file being there — results in a performance as it’s streamed to lots of people. Sadly that answer could be yes. Here’s the definition of a public performance under 17 USC 101:

To perform or display a work “publicly” means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, the argument would go that Bieber falls under clause (2) — he’s transmitting a performance to a place open to the public (“YouTube”) or perhaps simply to the public directly, “by means of any device or process.”

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page — would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you’d contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn’t be enough to “launder” liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.

Of course, they try to get around this by claiming they don’t want this to impact “non-commercial performances.” But, the definition of “non-commercial” is pretty fluid. Did you put ads on your upload? Uh oh. Did the video go viral and allow you to do something that made money? Uh oh.

Or how about the “large-scale” aspect. Well, we embed plenty of YouTube videos on this site. Would that make us “large-scale”?

And then there’s the “negative impact” argument. Really? What is the actual negative impact from people streaming these works? As we’ve shown, the actual output of basically all of these industries is rapidly increasing. There doesn’t seem to be any evidence of a negative impact at all. It’s especially bullshit to slip in “sporting events” in there (but, again shows how sporting organizations, including UFC and MLB, have been key to lobbying for this change), when the sporting events industry is thriving at unprecedented levels, and many of the major sports leagues (especially MLB) have shown that when you make a really good premium product, people will pay.

In fact, literally the day after the White House appeared to be arguing that streaming has created a “negative impact [that is] diminishing the drive and economic incentive to produce great… sporting events,” PwC came out with its latest analysis of the sports market in North America, showing that it’s nothing but up, up and up for sporting events in the US. If people streaming these events online has diminished the economic incentives, someone forgot to tell, well, everyone. If your job is to be in charge of understanding “intellectual property” in the US, shouldn’t facts like this have a role? Here’s PwC’s data (2014 is estimated, as of October), and it shows a pretty steady upward trend, especially on “media rights,” the only part really likely impacted by any streaming:

Furthermore, if you look at the full report [pdf] PwC predicts continued massive growth, especially in media rights, but we won’t show that because it’s speculation.

But, basically, the argument that sports events are somehow facing negative incentives to put on great events because some people are streaming unauthorized versions just doesn’t make any sense at all. It makes the claim that such a law is needed incredibly suspect, and hints strongly at the simple fact that this is nothing more than an attempted government favor to certain lobbyists.

Even where sports streaming does occur, it tends to be in situations where the leagues themselves have made it nearly impossible to legitimately pay for access in the first place, with idiotic concepts like blackout rules. Want to massively decrease unauthorized streaming of sporting events? Make better services and drop blackout rules. No need to turn hosting a webpage with some embeds into a felony.

Either way, it seems clear that the White House (and some in the Senate) still don’t realize that all of SOPA was a bad idea, including the ridiculous plan to make unauthorized streaming a felony.

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Comments on “White House Admits That It Still Supports Parts Of SOPA: Wants To Make Streaming A Felony”

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TruthHurts says:

youtube isn't public performance...

A public performance is one that is out in the open, going on without any passers-by control.

Outdoor concert – public performance
Outdoor movie – public performance

youtube video – private performance for each user as each user can start, stop, pause, rewind, fast forward as they see fit – they can also choose not to watch or listen to said video / recording.

This is a controlled environment like a movie theater, it’s even more controlled than a movie theater because you can pause it when you need to use the restroom or get another snack

That breaks the definition of public performance entirely.

TruthHurts says:

Re: Re: youtube isn't public performance...

This is no different that someone at home watching a movie on Netflix, and that is not considered a public performance.

Watching something on youtube is no different.

Now, if the person who placed the content on youtube doesn’t own it, remove it through standard practice.

But that has nothing to do with making streaming illegal.

TruthHurts says:

How can anyone understand something that doesn't exist?

*If your job is to be in charge of understanding “intellectual property” in the US*

Nobody can understand something that doesn’t exist.

Black Holes – exist
Dark Matter – exists
Bigfoot – could exist
Loch Ness Monster – could exist
Intellectual Property – doesn’t exist, cannot exist, it defies all past, present and future laws of physics to even consider that it exists.

antidirt (profile) says:

Re: Re:

Just a simple question. Can streaming currently be prosecuted as a crime under federal law? Your series of articles on this subject make it sound as if the answer is “No, streaming is not subject to criminal prosecution.”

Streaming can be a misdemeanor, but not a felony, under existing law. Violation of the reproduction or distribution right can be a felony or a misdemeanor. This proposed change would put performances on par with reproductions and distributions.

antidirt (profile) says:

Re: Re: Re:

Since your opinions are constantly mocked here by the site’s principals and most of its readers, I would prefer to have the answer to my question provided by Mr. Masnick himself. Most of the readership defers to his opinions, so perhaps his response would be a teaching moment.

Instead of insulting me, a simple thank you would’ve been nice since I took the time to answer your question. As far as getting Mike to address your question, good luck with that. I suggest that you don’t hold your breath while waiting.

limbodog (profile) says:

The pattern:

Civil dispute in which an individual wrongs a company – Severe penalties with interest for late payment and garnishing of wages

Civil dispute in which a company wrongs an individual – mandatory arbitration in which the company is already determined to be innocent

Crime committed by individual against company – Felony

Crime committed by company against individual – A fine less then, but not equal to the profit from the crime.

Did I miss anything?

Anonymous Coward says:

If your job is to be in charge of understanding “intellectual property” in the US, shouldn’t facts like this have a role?

One would think, but if you look at the RIAA and MPAA playbooks it’s the same bullshit. Sales up and can only point at all this ‘lost revenue’. Then *actually fucking innovate* or buy up a competitor that offers streaming services and incorporate it….

That One Guy (profile) says:

Old but still accurate

If your job is to be in charge of understanding “intellectual property” in the US, shouldn’t facts like this have a role?

Either way, it seems clear that the White House (and some in the Senate) still don’t realize that all of SOPA was a bad idea, including the ridiculous plan to make unauthorized streaming a felony.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”
-Upton Sinclair

Anonymous Coward says:

It all depends on how the bill is written. Klobuchar’s bill did not make VIEWING content a felony, while SOPA version did.

We will have to wait and see until the next felony streaming bill is introduced, so see what happens.

However, Klobuchar’s version, if that had been chosen over the SOPA version, would have only applied to those who SEND streams, for the purpose of MAKING MONEY and would not have applied to those who VIEWED the streams.

Anonymous Coward says:

I remember not to long ago, that the British Premier League was threatening news outlets from showing clips of football matches on anything. Literally threatening a news company for showing unlicenced clips from the latest Chelsea vs Arsenal match on the news. This was of course after they threatened Vine for allowing users to show 10 second clips of goals which the news amazing found to be well good for advertizing the BPL in the first place. We live in a world, but it seems some people are still in a bubble…

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